“He knows how to twist language, stir up controversy. As a result, what he can do is … devious and disturbing…. There is no way to sugarcoat this, the defendant is a menace….” Prosecution’s summation, Trial of Raphael Golb, transcript at 1246

“Neither good faith nor truth is a defense to any of the crimes charged.” Judge Carol Berkman, pretrial order, February 11, 2010

“This statute, literally understood, criminalizes a vast amount of speech that the First Amendment protects.” Chief Judge Jonathan Lippman, Dissenting Opinion in New York Court of Appeals Decision, People v. Raphael Golb at 2

“The district attorneys who prosecute online impersonators such as Golb … should be well aware that they are trampling on firmly established free speech rights.” Arthur S. Hayes, Censorship Redux: The 21st Century Attack on the First Amendment Right of Public Criticism by the Use of Cyberharassment, Cyberstalking and Online Impersonation Laws, at 153.

Can an Internet blogger, consistent with the Constitutions of New York and of the United States, be arrested and prosecuted for criticizing, in pseudonymous postings, the conduct of the creators of a Dead Sea Scrolls museum exhibit, and for lampooning a well-known academic figure in a satirical email hoax?

Does so-called “malicious” mimicry — in this instance, personification that prosecutors and criminal court judges consider not “humorous” or “clear” enough — result, under American law, in the commission of a crime of deceit and provocation, punishable by a term of incarceration in the Rikers Island penitentiary?

Does an act of deadpan imitative mockery need to be “just for fun,” as New York City prosecutors are arguing, to be constitutionally protected?

September 3, 2017 update: Aspects of the Kafkaesque prosecution of Raphael Golb are now, nearly nine years after Golb’s arrest, the subject of a decision by the Second Circuit Court of Appeals in New York, in which the federal court, parsing and evaluating the content of various emails sent by Golb, concludes that of the many charges pertaining to five original academic complainants, only those involving a single academic — Professor Lawrence Schiffman of New York University — are constitutionally viable.

Upholding criminal convictions for Raphael Golb’s deadpan mimicry of this single complainant, the Second Circuit has left intact the previous ruling of the New York Court of Appeals that the government has the right to criminalize mimicry of academic public figures “deceitfully” engaged in with the intent to “damage reputations.”

A new legal reality results from this decision. While it is not a crime in New York to send out an anonymous Gmail or tweet falsely stating “Dear faculty members, it has come to my attention that Professor X is sending out emails in which he seeks to suppress the allegations that he violated your faculty code of conduct,” it is now a crime to send out provocative Gmail messages or tweets that at first sight seem to come from X, in which X is portrayed as seeking to suppress such allegations.

The rational for this distinction does not seem readily apparent, as both forms of communication generate the same impression and are capable of “harming a reputation.” Nevertheless, as a result, the New York courts have now succeeded in carving out an important new restriction on First Amendment rights. Discussing the Raphael Golb case in his recently published book “Sympathy for the Cyberbully: How the Crusade to Censor Hostile and Offensive Online Speech Abuses Freedom of Expression,” media-law and journalism specialist Arthur Hayes writes that the New York Court of Appeals’ justification for imposing the restriction — “Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property” —

is an unconvincing and clumsy sidestepping of First Amendment and New York state precedents. In effect, the court carved out in cursory fashion an exemption from the First Amendment for speech with academic value — or scholarly debates.

But why stop with scholars? Don’t, say, authors, priests and Buddhist monks, ethicists and artists, political and ideological purists value their reputations as much as their property, oftentimes more so? They do, of course, but the court did not consider them. It drew a constitutional line with little justification. Moreover, if … reputations … were injured, civil actions — libel lawsuits — were the constitutionally appropriate recourse. (Op. cit., p. 160)

The Second Circuit’s decision to leave the new precedent intact — a decision the panel of three judges claims to have reached pursuant to the strictures imposed on federal courts by the “Anti-Terrorism and Effective Death Penalty Act” of 1996 — follows the filing of an appellate brief, a response by the District Attorney of Manhattan, and a reply that discusses certain “innuendos, omissions, and distortions” that have characterized the District Attorney’s treatment of this case over the past seven years. A hearing on the matter took place at the court on June 23, 2017; an audio is available here.

Now that 41 of the original 51 counts brought to trial have been vacated, what remains of the case is the charge that Raphael Golb committed crimes by targeting Lawrence Schiffman in a Gmail hoax in which then-department-chairman Schiffman was portrayed as commanding recipients to suppress discussion of a “minor failing” (to wit, plagiarism) and as justifying his alleged misconduct on the grounds that “if I had given credit to this man, I would have been banned from conferences around the world.”

Note: Schiffman was originally accused of plagiarism by Dr. Avi Katzman, an Israeli journalist, in 1993 (see Haaretz, Musaf, p. 50, Jan. 29, 1993). According to an exposé by Batya Ungar-Sargon, “in a recent telephone interview, Schiffman himself insisted that he suffered no harm” from being portrayed as admitting to plagiarism. Yet it is Schiffman who filed the criminal complaint pursuant to which Raphael Golb was indicted and prosecuted.

In January 2011 (approximately two months after the Raphael Golb trial), Schiffman resigned from his NYU Jewish Studies department chair and took a position as Vice Provost of Undergraduate Studies at Yeshiva University; he served in that capacity for three and a half years before returning to NYU, where he is currently the Judge Abraham Lieberman Professor of Hebrew & Judaic Studies. Schiffman’s departure from NYU was discussed in various press reports and in an editorial by Ronn Torossian. During Schiffman’s absence from NYU, certain letters written by an attorney representing him became a topic of conversation on the Simple Justice and Volokh Conspiracy law blogs, where the suggestion was made that these letters were an example of the Barbara Streisand Effect.

In his above-cited book, Professor Hayes justifies Raphael Golb’s emails on moral grounds, suggesting that they contained a “parody of academic ‘politics'” and stating that “parody, satire and other forms of outrageous speech have the capacity to reveal truths that provide valuable information and wisdom about the human condition that may yield great benefit to substantial portions of any community.” (Id., pp. 156, 175.)

The Second Circuit Court of Appeals decision, however, denies that Raphael Golb’s criminalized messages contain parody. The decision presents the messages in deadpan manner, omits their more obviously satirical portions, and fails to address the question of whether reasonable people would seriously believe a university department chairman had sent out communications justifying plagiarism and demanding that students be prevented from seeing an article prominently linked in the emails. The decision summarily distinguishes “parodies” from “hoaxes,” but does not address the grey zone lying in-between: the phenomenon of satirical hoaxes used to convey ideas and criticism.

The underlying academic dispute:

For the underlying dispute concerning research ethics and exhibitions of the Dead Sea Scrolls, see Prof. Norman Golb’s op-ed and, in particular, his open response to the August 29, 2008 “confidential letter” submitted by Lawrence Schiffman to prosecutors and to NYU officials; Schiffman’s letter (which was withheld by prosecutors from defense counsel until the eve of trial) is available here. See also the account (by one of the world’s foremost Judaica scholars) at pp. 4-5 of a volume of essays honoring Norman Golb:

Institutions and museums, international conferences and books may ostracize the scholar who transmits a new message… A crisis emerges… The paradigm shift is not peaceful because the adherents of the old paradigm defend it with sword and buckler. A battle takes place, with the adherents, institutions, and power of the old paradigm arrayed against revolutionaries. Eventually, when the dust settles, the new paradigm gradually gains adherents and replaces the old.

For further information on the academic context of the Raphael Golb trial, see the “About” and “Trial Testimony of NYU Officials” sections of this blog.

The Second-Circuit Appendix

The Second Circuit appeal brief is accompanied by an appendix consisting of six separate volumes (one, two, three, four, five, six), which may serve to give an idea of the ample resources that the City of New York has seen fit to devote to the problem of inappropriate electronic mimicry over the past seven years.

The decision of the New York Court of Appeals

In May of 2014, the New York Court of Appeals (New York State’s highest court, located in Albany) issued a decision in the case, portions of which have been left intact by the federal court. The decision was authored by the late Judge Sheila Abdus-Salaam; it appeared approximately two weeks after the suicide of her brother, and nearly three years before her own suicide by drowning on April 12, 2017. In sum:

(1) The Court of Appeals vacated Raphael Golb’s remaining “identity theft” felony conviction; the other one had previously been vacated by the intermediate appellate court in New York City.

(2) In a rebuke to prosecutors that had an immediate impact on approximately 7,600 other cases, the Court of Appeals declared New York Penal Law § 240.30(1) (which criminalized merely “annoying” speech) to be unconstitutional; accordingly, the court vacated Raphael Golb’s “aggravated harassment” convictions.

(Note: according to former prosecutor Scott Greenfield, these charges had the effect of “wreaking prejudicial havoc and deflecting attention from the real issues….” For example, the charges pertaining to the academic criticism of Dr. Robert Cargill were patently unconstitutional; yet prosecutors placed considerable emphasis on the wrongs purportedly done to Dr. Cargill and on his testimony during the trial. In an unpublished “exclusive” forwarded to the prosecutors and ultimately entered as a trial exhibit, Cargill stated that it is “unfortunately still true” that the world will only be “rid of [Professor Norman Golb] … when he dies.”)

(Following the Court of Appeals’ decision, Penal Law § 240.30 was rapidlyamended to make it clear that it did not apply to unwanted or embarrassing criticism of an academic nature, but only to communications that convey a “threat to cause physical harm … or unlawful harm to … property.”)

(3) The Court of Appeals vacated an “unauthorized-access-to-a-computer” conviction, along with various impersonation convictions that criminalized the mere creation of email accounts from which no messages were sent. In addition, the court vacated a conviction that criminalized an email signed “Jonathan Seidel” which contained nothing that could be deemed expressive of an intent to “harm” anyone’s “reputation,” but only a sharply worded inquiry critical of a museum exhibit.

(4) The Court of Appeals affirmed a set of criminal impersonation and forgery misdemeanor convictions, on the limited ground that the defendant allegedly sought to “damage the reputations” of some of the complainants — and not, according to the court, merely to cause “momentary embarrassment or discomfort,” which would not be a crime. In creating this standard, the Court of Appeals ignored Golb’s argument that the trial was a disguised criminal-libel prosecution, and failed to distinguish between truthful and malicious harm to reputation. The trial jury had received no instructions regarding the distinction between “damage to reputations” and “momentary embarrassment or discomfort,” but had simply been told to find Golb guilty if he intended to cause “any harm” or gain “any benefit,” a standard the Court of Appeals found too broad.

Note: Disregarding Ashton v. Kentucky (1966) and other U.S. Supreme Court cases requiring that a new trial be granted when the scope of a statute is narrowed on appeal, the court remanded the case for resentencing.

(5) However, the Court of Appeals’ chief judge, Jonathan Lippman, dissented from the majority opinion, arguing that the statutes invoked are “unconstitutionally broad, and substantially so,” and that “criminal libel has long since been abandoned, not least of all because of its tendency in practice to penalize and chill speech that the constitution protects….” According to the chief judge, “the use of the criminal impersonation and forgery statutes now approved amounts to an atavism at odds with the First Amendment and the free and uninhibited exchange of ideas it is meant to foster.”

These key legal issues then became the focus of the federal habeas litigation. Given the ultimate outcome in the federal courts, Albany’s majority decision clearly means that “deceitfully” deadpan satirical impersonation engaged in with the alleged intent to “harm a reputation” remains a crime in New York. As the authors of one criminal defense blog put it in a comment on the case, “how do you know when you’ve crossed that line? And where in the statutory language… is that line in the first place?” The authors suggest that the Court of Appeals’ majority decision is “arguably an unconstitutional attack on free speech.”

(Note: the Raphael Golb case does not involve any allegations of so-called hacking or, as one press report falsely stated, “hijacking” of anyone’s personal or business emails. For example, the criminalized mockery of Lawrence Schiffman originated from larry.schiffman@gmail.com, a Gmail account created by Raphael Golb.)

Discussions of the Court of Appeals decision and its potential legal impact include an Associated Press account, an article in Reason, and another on former prosecutor Scott Greenfield’s Simple Justice website.

A hearing on the case was held at the Court of Appeals on March 25, 2014; click here for the transcript, and here for the video webcast of this tense oral argument. Accounts of the argument include a New York Law Journal article by Joel Stashenko; see also the commentary by former prosecutor Scott Greenfield.

“My instincts for free speech and freedom of expression all militate in Golb’s favour… To jail a man for this kind of incident is perfectly ludicrous.” Walter Cairns, Lecturer in Law, Manchester Metropolitan University

In their response to Mr. Kuby’s appeal brief, prosecutors had reiterated their claim that “deceitful” intellectual provocation is a crime, and that putting a fake “confession” of plagiarism in the “mouth” of a well-known NYU department chairman constitutes a legally cognizable “injury” — even if it turns out that the department chairman did indeed commit plagiarism, was first accused of doing so by an Israeli journalist in an article published in Hebrew in 1993, and concealed that accusation from his NYU colleagues and superiors.

(Note: already before the trial, the prosecution’s search and arrest warrants, signed under oath by a New York City police officer on behalf of the District Attorney, declared that “the allegations of plagiarism are false.”)

In their response to Mr. Kuby, the prosecutors argued that the District Attorney was properly allowed to suggest, throughout the trial, that Raphael Golb made “false accusations,” despite the trial court’s pretrial ruling that “neither good faith nor truth is a defense to any of the crimes charged.” At trial, Golb’s attorneys were blocked, pursuant to that ruling, from introducing any evidence that the plagiarism allegations are true.

Further, the prosecutors sought (as it turns out, unavailingly) to convince the judges that anonymous email complaints about an academic controversy may be criminalized as “aggravated harassment” on the ground that they are “annoying” to the individuals whose conduct is criticized in them.

On the other hand, the National Criminal Defense Lawyers Association amicus brief, authored by Marc Fernich, bluntly opposed the prosecutors’ approach, and asserted that “not a single case” exists in which New York’s criminal impersonation statute has been interpreted as extending “to the kind of abstract and amorphous benefits and injuries alleged here.”

Calling the prosecution of Raphael Golb “unprecedented and inappropriate,” the amicus brief argued that “if Schiffman and others like him feel aggrieved by online speech with academic value, they have adequate remedies in tort,” rather than in the criminal courts. It is, the brief went on to assert, wrong to “jail the actor for causing a bruised ego or, at worst, diminished credibility as a scholar”; if Raphael Golb’s conviction stands, “virtually anyone who impersonates others on the Web for wholly innocuous reasons” can be unjustly arrested, prosecuted, and incarcerated.

Similarly, Mr. Kuby, in his reply to the prosecutors, focused on the widespread phenomenon of fake social media accounts and communications (such as fake tweets in the “name” of various university presidents), as well as on the “deceitful” Internet hoaxes engaged in for polemical purposes by the Yes Men and similar groups and individuals; Mr. Kuby argued that if Golb’s conviction stands, all of this can be criminalized.

In a “Counter-Statement-of-Facts” with which the reply begins, Mr. Kuby discussed the Manhattan District Attorney’s salient assertions and innuendos about Professor Norman Golb’s research and, more generally, the prosecution’s ongoing efforts to lead the court “far afield of the legal issues before it by engaging in a persistent and far-sweeping attack on Raphael Golb’s character and on that of his entire family.”

In this regard, Mr. Kuby signaled various statements by Raphael Golb that directly express his intent, in his own words, to “expose” the misconduct of others, to “inform people of the truth,” and to prompt debate concerning a situation that “egregiously misinforms the public.” These direct statements by Raphael Golb, systematically concealed by the prosecution, are sometimes found in the same — or in more complete versions of — email threads from which the prosecutors have culled and patched together casual banter to suggest that Raphael Golb intended not to expose misconduct and inform the public, but to “harm” various scholars.

An appendix attached to Mr. Kuby’s reply contains a letter, dated June 3, 2009, from University of Chicago counsel to Lawrence Schiffman’s principal co-complainant Robert Cargill, informing him that his demands that the University remove from its website an article by Professor Norman Golb were perceived as “threats of nuisance litigation,” and urging him to “respond to Professor Golb openly and on the merits, rather than attempting to silence academic commentary and criticism through legal posturing.” This letter was also included in a discussion by Professor Norman Golb, available on the website of the University of Chicago’s Oriental Institute.

Raphael Golb (Photo: Edwina Ramade)

Some of the basic legal issues at stake:

Whether the use, in Internet blogs and emails, of pseudonyms and satirical mimicry or mockery can, consistent with the First Amendment of the United States Constitution, be criminalized as a “fraudulent scheme to promote a theory”;

Whether a defendant may be prevented, on the ground that the “truth” is not a “defense,” from introducing evidence that his pseudonymous Internet statements were true, when the prosecution is allowed to suggest, approximately 170 times, that the defendant made “false accusations” (see the table appended to Raphael Golb’s personal account of his trial);

Whether prosecutors and courts may play a censorial role, make judgments about the value of speech, and decide which critical statements, or which forms of verbal criticism, venting, or otherwise “annoying” expressive conduct, do or do not have social utility.

September 3, 2017 update: Six more months of incarceration were to follow if the felony convictions had been upheld on appeal. Upon remand for resentencing, Judge Laura Ward imposed a sentence of two months, now, after many delays, set to commence on September 18, 2017.

The phenomenon of satirical Internet impersonation:

The various appeal briefs point to a list of many similar examples never before criminalized in the United States. Neither of the appellate court decisions address any of this material.

Erroneous press accounts:

Press accounts of the case include a New York Times item by Jim Dwyer and a lengthy article by John Leland. Mr. Leland’s article contains several inaccurate quotations and additional errors, including the false and misleading assertions that Prof. Norman Golb’s research has attracted no support “from any major academics in the United States,” and that Prof. Golb “posted an article… complaining” that a film authored by Dr. Robert Cargill and shown at a museum exhibit “ignored his theory.” Prof. Golb’s article, which was posted, following appropriate review, by personnel of the Oriental Institute of the University of Chicago, contains a detailed critique of the film in question; it can be read here, and a revised version of it is available here. Further discussion of various news items and their relation to the narrative put forward by prosecutors in this case is posted on the “press releases and news coverage” page of this blog.

Previous pleadings:

The original appeal of the trial verdict was filed by Mr. Kuby on March 16, 2011: that brief may be read here. Seventeen months later (August 8, 2012), NYC prosecutors filed a 96-page response, arguing that Raphael Golb deceitfully “promoted” his father’s “unpopular” research and engaged in an elaborate scheme to fraudulently procure $1,000 by trying to get his father invited to participate in a lecture series at the Jewish Museum in New York through a “smear on the reputation” of Dr. Lawrence Schiffman. A reply by Mr. Kuby followed.

In a summary decision, a panel of judges of the First Appellate Division in NYC then rejected the $1,000 felony count as based on “speculation,” but left the many other charges in this case intact pending further appellate review, including multiple “harassment” counts criminalizing pseudonymous email complaints sent to several academic departments (emails that involved no impersonation whatsoever).

Most importantly, the panel left intact an additional felony count, premised on the idea that Raphael Golb intended to “falsify the business records” of New York University by sending out fake “Gmail confessions” that initially appeared as if they were written in Lawrence Schiffman’s voice.

The First Appellate Division decision offered no analysis of the harassment charges or “business records” felony charge, resting its broad decision on the conclusion that the email impersonations involved in several of the counts did not constitute “parody.” The court based its conclusion on a two-part “test” for parody applied in a trademark case. Thus, for the first time in an American court of law, a parody “test” developed in trademark litigation was applied in the context of a criminalprosecution.

The decision also asserted that Raphael Golb was prosecuted not for the content of his criminalized texts, i.e., for his speech, but merely for the act of creating the “impression” he was someone else. According to Mr. Kuby’s appeal briefs, this distinction is puzzling in view of the jury’s determination that Raphael Golb intended to “injure” another or to obtain an illicit “benefit.” If Raphael Golb, while giving the “impression” he was another, had sent out a text stating merely “I wish you all a good summer,” would he have been charged with crimes?

Leave to appeal to Albany was granted in a short order by Judge Eugene Pigott of the New York Court of Appeals. Previously, Mr. Kuby’s First Appellate Division reply brief addressed the prosecution’s argumentation in the light of recent U.S. Supreme Court case law; these cases were ignored in the NYC First Appellate Division’s decision.

Appendix:The parenthetical page numbers in Mr. Kuby’s original First Appellate Division appeal brief refer to pages in the following appendices:

A few additional pages are included in the New York Court of Appeals complete appendix, including, e.g., page 144 from the trial transcript (A-366a) where Lawrence Schiffman, at the time an NYU department chairman, testified that “no one reads” the NYU faculty code of conduct.

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The following are reproductions of official (uncorrected) trial transcripts of testimony of the principal witnesses in the trial of Raphael Golb, preceded by the Grand Jury testimony of Prof. Lawrence Schiffman. The files are all in pdf format.